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In Fawcett v McRoberts, 326 F.3d 491 (4th Cir.,2003) the
mother petitioned for an order compelling the father to return the child
to Scotland. The District Court granted her petition. The Court of
Appeals held that the father's appeal was not moot, notwithstanding the
fact that the child had already been returned to Scotland; the mother
could comply with an order on her own volition that she return the child
to the United States; the father could, pursuant to the Child Abduction
and Custody Act 1985, seek enforcement through the United Kingdom's
courts of an order that the mother and child return to the United
States, were the district court, on remand, to issue such an order; and
finally, the mother could at some point return to the United States with
the child, at which time the father could seek to enforce such an order.
Prohibition under the Children (Scotland) Act against removing a child
from the United Kingdom without parental consent did not confer "rights
of custody" on the mother whose rights to the child had been modified by
divorce decree such that the mother had rights under the Hague
Convention, for purposes of suit initiated by the mother requesting the
child's return to Scotland pursuant to the Hague Convention. Sheriff
Court was not exercising "rights of custody" over the child within the
meaning of the Hague Convention at the time the father removed the child
from Scotland; the mother had not been seeking a residence order with
respect to the child in any application pending before the Sheriff
Court, but was rather seeking a court order prohibiting the father from
leaving Scotland at the time child was removed. |
